The on-going attempts to derail the International Criminal Court ( ICC) process on the Kenyan case has been greeted with a lot of hue and cry from not only the Orange Democratic Movement ( ODM) section of the government but also from the civil society and a wide cross-section of the Kenyan public.

The aim of the procession was to march to Parliament buildings and deliver the petition to Parliament in time before the expected ruling by house Speaker, Hon. Kenneth Marende. The petition was read and delivered to Hon. Aluoch Olago, Kisumu Town West MP. Mr. Olago also acknowledged having received a copy of the petition on two days earlier in accordance with the rules of Parliament and promised to put it on the Order Paper for the day’s business. It is hoped and expected that the petition will be tabled in Parliament appropriately. The petition aims to convey to the Parliament and the country’s top leadership the mood of the public on the matter of deferral of the ICC process and the recent presidential judicial nominee. It is meant to draw their attention to the Rome statutes and the import of the Rule of Law.

In attendance were other civil society groups such as Bunge la Mwananchi and Warembo Na Katiba lobby group, who are also members of the KPTJ.

PRESS STATEMENT

SUPPORT FOR ARREST WARRANT AGAINST PRESIDENT OMAR EL BASHIR

2 December 2011

Kenyans for Peace with Truth and Justice, a coalition of citizens and organisations working in human rights, governance and legal areas, have come together to congratulate the judiciary for their progressive decision operationalizing the arrest warrant against the President of Sudan Omar el Bashir in Kenya.

We recall; the International Criminal Court issued two warrants of arrest against President Bashir in 2009 and 2010. In line with its international obligation as a state party to the Rome Statute, it was incumbent upon the Kenyan government to declare their intention to arrest President Bashir for alleged crimes of genocide and crimes against humanity in the Darfur region of Sudan when and if he entered Kenya. This obligation stands for as long as Kenya is a signatory to the Rome Statute.

It was therefore a grave violation of state obligation and a show of disrespect for international treaties for the Kenyan government to invite and host President Bashir in Kenya on 27 August 2010, on a day when Kenyans were celebrating the promulgation of our new Constitution – a manifestation of the rule of law and of justice for all Kenyans.

The Rome Statute has been domesticated into Kenyan law. It must be noted that treaties are the primary means by which a state acquires obligations in international law. Treaties are voluntary agreements that a state enters into of its own free will. It is assumed that this is done after expert advice by its lawyers and consultations with national constituencies. Once signed and ratified, they are sources of binding obligations. The fundamental principle of international law is that “agreements shall be kept.” Other states have a legitimate expectation that their co-signatories are not ratifying treaties merely to deceive or present themselves in a positive light. It is on this basis that the high court of Kenya is within its rights and indeed its duties in keeping with the International Crimes Act of 2010 to operationalize warrants of arrest on persons who are wanted by the ICC to answer charges of crimes against humanity.

We laud ICJ-Kenya for championing the cause for the Public, by initiating the application for the warrants of arrest. We also commend Chief Justice Mutunga’s defense of the independence of the judiciary and of individual judges in keeping with the spirit of our new constitution.

In the same breath, we urge fellow African Governments and IGAD in particular to respect the fact that Kenya is on course towards reforming the judiciary. Through this decision Kenya has now joined a list of countries that fight for international justice such as South Africa, which applied for President Bashir’s arrest warrant long before Uganda which issued public statements on his arrest. This had the effect of dissuading President Bashir from going to these countries. We stress the need for Kenya and Africa to recognize that real peace and security in the region will be sustainable only in an environment of justice and accountability; not of fear and impunity.

As members of the civil society, we are wary that the conduct of the Government in response to this decision may be an indication of the Government’s unwillingness to co-operate with the ICC with respect to the two Kenyan cases. We remind the Government of its obligation and commitment to co-operate with the ICC in keeping with the strong wishes of the Kenyan public.

We want to make it clear that what is at stake here is not merely a legal point. We are talking about the faithful implementation of the Constitution. A government that rides roughshod over its international obligations, which it has freely assumed, is a government that will not listen to its own people. A government that has a casual and irresponsible approach to law at the international level, will have a casual and irresponsible approach to law at the national level.

We therefore urge the Government to respect the judicial decision and desist from attacking the judiciary for carrying out its functions. If dissatisfied by that decision, it should exercise its right of appeal.

We finally wish to commend the people of Kenya for promulgating a Constitution that allows persons, both institutions and individuals, to fight against human rights violations and ensure that Kenya is not a safe haven for alleged perpetrators of human rights violations.

End

In her welcome remarks, Ms. Muthoni Wanyeki, the Executive Director of the Kenya Human Rights Commission (KHRC), focused on demystifying the confusion and misunderstanding that exists around the International Criminal court ICC (ICC) process.  “What are we meant to do for the majority of victims whose cases will not be at the ICC?” she asked.

The conference sought to address the Kenyan situation and analyse critically the ICC’s mandate in Kenya.  It also sought to reflect on the general outcome of the PEV and look into the achievements of the Commission of Inquiry on the Post Election Violence (CIPEV) and the human rights fraternity in assisting the ICC in its investigations. The ICC was deemed to be governed by four key principles namely: impartiality; admissibility of evidence; stringent checks and balances and individual criminal responsibility.

Among the issues discussed were:

The process and prospects of the ICC in Kenya; International, regional and municipal instruments of international criminal justice and reflections on the ICC situation in Kenya; the ICC versus the African Union (AU) interplay in Kenya situation; International criminal trials (e.g. ICTR experience) and the future of international criminal justice system by looking at the ICC process in Kenya; and the way forward on justice and politics in Kenya after the post-election violence.

On the issue of  ICC versus the AU interplay in the Kenyan situation it was noted that some African leaders are poised to be exploiting gaps in criminal accountability situations to undercut the pursuit for justice by presenting the ICC as a new form of imperialism that should not be supported.

During the question and answer session, the two ICC officials clarified on the cases to prosecute. They said that investigations are still going on since April and the cases for prosecution will be known once the investigations are complete. However, the OTP started by investigating all allegations, they narrowed down to more serious incidences and finally the OTP has settled on two cases which are the gravest. However they would not divulge the details at the time but it i now public what these cases were.

To mitigate the situation, the KHRC held a three day teachers training workshop in Taveta on children’s rights in November 2010. During the workshop the teachers were trained on children rights one of them being the right to education as provided for in the children’s act and the convention on the rights of the child among other provisions.

Child abuse issues (both physical and psychological) were discussed and the participants came up with ways for the teachers to identify this abuse. The continual belief in demon-possession and the type of violent exorcism carried out on the children without addressing the root cause of the phenomenon that leaves children exhausted was identified as a type of child abuse.

In the process the extent of the damage done was unearthed by the journalists that accompanied the KHRC and the Taita Taveta HURINET team.
One of the interventions used to foster child protection in the area is the formation of the Queens of Change Clubs in schools. Through the Queens of Change Clubs, (proactive societies in 5 schools in Taveta: Timbila; Rekeke; Mahoo; Njoro and Kimala) the Taita Taveta HURINET has made headway in protecting children from Child Abuse, sexual abuse and child neglect.

The Queens of Change Clubs were set up in 2008 as recognition that child abuse was rampant in Taveta. The KHRC-community partnerships aimed at addressing the rampant problem of child abuse in Taveta District. It was thought, at the time, that for a more wholesome regime of child protection, children in schools would need to be enlisted as part of the campaign to stop child abuse.

The network mentors the Queens of Change Clubs in order to generate the spirit if child protection in schools. In liaison with KHRC other partners, the network has provided speaking boxes, counseling services and legal education on child protection. In turn, the Queens of Change Clubs, previously under a pilot phase, have registered remarkable gains in the realms of Child Protection. The children write notes and put them in the speaking boxes which are opened by the Taveta HURINET after every two months. The boxes have served as a source of vital information and also helped in identifying cases of defilement in schools and in one instance they helped identify a teacher who was defiling children and the teacher even got prosecuted in court. The boxes operate like a secret ballot boxes where the children write their views which are anonymous to provide protection to the children and to make them feel safe to express themselves and speak on what is going on with them.

PIC TAITA TAVETA 9: The opening up of a Queens of Change speaking box in Madarsani primary school, Taita Taveta, a measure to report violation of children’s rights. In one of the schools children narrated to the team of KHRC staff, Taveta Hurinet and journalists alleged incidences of children being possessed by demons. The school alleged that a pastor had prayed for the children and thereafter strange occurrences started taking place. The children would all fall in a trance and see images of a woman who would force them to work in her farm for many hours. Later the woman would carry them to the ocean and force them to eat human flesh.